I know it's been a few weeks since Baze v. Rees, but I thought I would post some overdue comments regarding my impressions of the case -- overdue because of a horrendously busy April, some emergency home repairs, a dying (now dead) home computer, and the persistent responsibility of caring for a two-year old. But enough about me . . . .

I must admit to the guilty pleasure of typically turning to the separate opinion by Justices Scalia or Thomas (or, in this case, both) when a case like Baze comes out. In Baze, I was most intrigued by Justice Thomas' concurrence in the judgment, joined by Justice Scalia, arguing that "a method of execution violates the Eighth Amendment only if it is deliberately designed to inflict pain." I think this conclusion is deeply flawed.

Justice Thomas supports this view by noting that some methods of execution extant in 1791 had as "[t]heir defining characteristic . . . that they were purposely designed to inflict pain and suffering beyond that necessary to cause death." He concludes from this that "there is good reason to believe that the Framers viewed such enhancements to the death penalty as falling within the prohibition of the Cruel and Unusual Punishments Clause."

Indeed. But it is one thing to say that methods of execution deliberately designed to inflict pain "fall[] within the prohibition of the Cruel and Unusual Punishments Clause." It is quite another to say that only those methods of execution deliberately designed to inflict pain are included within that prohibition. Justice Thomas never takes that final step and offers any proof that the Cruel and Unusual Punishments Clause is concerned exclusively with methods of execution deliberately designed to inflict pain. It is as if one observed that the framers and ratifiers of the Fourteenth Amendment viewed the old Slave Codes "as falling within the prohibition of the [Equal Protection] Clause," and concluding that that is all with which the Equal Protection Clause is concerned, a position Justice Thomas has steadfastly rejected.

Justice Thomas also cites Wilkerson v. Utah, In re Kemmler, and Louisiana ex rel. Francis v. Resweber as support for the conclusion that only those methods of execution deliberately designed to inflict pain violate the Eighth Amendment. Yet the very language he quotes from the latter two cases suggests he is wrong. He quotes the Kemmler Court as writing: "Punishments are cruel when they involve torture or a lingering death . . . . It implies something inhuman and barbarous . . . ." Even if one interprets "inhuman" or "barbarous" as implying some requirement that the punishment be designed to cause pain -– a questionable interpretation for reasons that I will elaborate upon in a subsequent post –- Kemmler quite clearly opined that a method of execution can be cruel when it "involve[s] torture or a lingering death." These words imply no scienter requirement at all on the part of the executioner or the State. When one condemned to hang slowly asphyxiates because the executioner has negligently used a rope that is too short, one could hardly say that the execution does not "involve . . . a lingering death." And one might imagine many deaths occurring without any human cause –- say, being eaten alive by wild animals or falling into a volcano –- that we might describe as "involv[ing] torture."

The snippet from Resweber provides even less support for Justice Thomas’ position. In that case, the condemned claimed that a second attempt at electrocution would violate the Eighth Amendment after a failed first attempt. The Court rejected that argument, commenting: "There is no purpose to inflict unnecessary pain nor any unnecessary pain involved in the proposed execution." Again, far from requiring that pain be purposeful for a violation of the Eighth Amendment to occur, the Court is suggesting that it is enough that "unnecessary pain [be] involved," without any intent requirement. Moreover, Justice Thomas also quoted the Resweber Court as observing: "The fact that an unforeseeable accident prevented the prompt consummation of the sentence cannot . . . add an element of cruelty to a subsequent execution." Now this passage might mean what Justice Thomas supposes it means: that unless the botched execution is within the deliberate design of the State, the Eighth Amendment is not violated. However, it might also support the notion that a foreseeable accident during a first attempt might render a second attempt unconstitutional. Yet Justice Thomas blithely ignores this possibility and abruptly ends his discussion of the precedents.

His very next sentence, opening up a new section, begins: "In light of this consistent understanding of the Cruel and Unusual Punishments Clause as forbidding purposely torturous punishments . . . ." Come again? Justice Thomas has failed to show that this has been the "consistent understanding" at all. Instead, he has simply ignored the language in the opinions that he himself has quoted that does not support his thesis. He has, in short, swept his opponent's chess pieces off the table. [Mike Mannheimer]